When a situation arises related to the voluntary or forced alienation of residential premises, family members of the owner of the housing often have questions about exactly what rights they have to the residential premises.
Do family members have the right not to leave the housing when the owner voluntarily alienates it? In the event of a forced termination of ownership, do family members have the right to live in the housing received as compensation for the previous housing?
WHO IS THE OWNER'S FAMILY MEMBER?
In accordance with Article 21 of the Law of the Republic of Kazakhstan "On Housing Relations", the family members of the owner of a dwelling include:
- spouse or spouse cohabiting with the owner of the dwelling;
- children of the owner of the dwelling;
- parents of spouses and children who have their own families and permanently reside with the owner are recognized as members of the owner's family only by mutual agreement;
- disabled dependents if they permanently reside with the owner;
- in exceptional cases, other persons, if they permanently reside with the owner and have a common household with him for at least 5 years.
EVICTION IN CASE OF VOLUNTARY ALIENATION OF HOUSING BY THE OWNER
In accordance with the norms of civil law, the owner has the right, at his own discretion, to dispose of his property, that is, to sell, donate or otherwise alienate his housing without the consent of family members who are not its owners.
In connection with the termination of the right of ownership to a dwelling by the will of the owner (sale, donation), members of the owner's family, former family members of the owner and temporary residents are obliged to move out of the dwelling. As a result, family members do not have the right to demand the provision of another dwelling from the previous owner or purchaser of the dwelling, unless otherwise provided by the contract with the purchaser of the dwelling (paragraph 2 of Article 30 of the Law "On Housing Relations").
Consequently, the purchaser of the residential premises has the right to apply with a demand to the family members for eviction, since their presence deprives him of the opportunity to exercise his rights in relation to the property belonging to him. In turn, neither the former owner nor the purchaser of housing is obliged to provide the family members of the former owner of a residential apartment with new housing. In the event that the purchase and sale agreement or the donation agreement or other agreement on the alienation of housing provides for the obligation of the purchaser of the residential premises to provide the family members of the former owner with new housing, only then the family members have the right to apply for it.
EVICTION UPON FORCED TERMINATION OF OWNERSHIP OF HOUSING
In accordance with paragraph 1 of Article 29 of the Law "On Housing Relations", forced (in addition to the will of the owner) termination of the right to own a dwelling is allowed in the following cases:
- foreclosure on a dwelling together with a land plot for the debts of the owner;
- requisitions;
- confiscation;
- compulsory alienation of the land plot on which the house is located for state needs;
- demolition of emergency housing, threatening collapse (collapse).
Upon termination of the right of ownership of a dwelling as a result of requisition, forced alienation of the land plot on which the house is located, for state needs and demolition of emergency housing that threatens to collapse (collapse), the family members of the owner are evicted from the dwelling and acquire the right to live in the dwelling received as compensation for the old home. Other persons residing in the former dwelling are evicted without being provided with another dwelling (Item 1 of Article 30 of the Law "On Housing Relations").
That is, family members, along with the owner of the property being requisitioned, have the right to live in a dwelling acquired by the owner with funds paid by the state, or granted ownership as a result of the withdrawal of the dwelling (Article 253 of the Civil Code of the Republic of Kazakhstan (General Part)).
The forced alienation of the land plot on which the house is located for state needs and the demolition of emergency housing, which threatens to collapse, entails the obligation of the state to provide the owner of the residential premises with equivalent property (Article 255 of the Civil Code of the Republic of Kazakhstan). Provision to the owner of equivalent comfortable housing or housing from the communal housing stock is the basis for the emergence of the right to residence of family members in the housing received by the owner as compensation for the former housing.
Termination of the right of ownership of a dwelling as a result of confiscation or as a result of foreclosure on a dwelling together with a land plot for the debts of the owner excludes the right of the owner and family members living in the confiscated dwelling to apply for the provision of another dwelling.
EVICTION OF MINOR FAMILY MEMBERS WHO ARE NOT OWNERS
The norms of the current legislation do not provide for a special procedure for the alienation of property on a voluntary and compulsory basis in the case of underage family members living with the owner. The legislation does not contain exceptions for minor family members.
Therefore, in the event of alienation by the former owner of the residential premises on a voluntary basis, the new owner has the right to demand the eviction of all persons living in the residential premises belonging to him, without exception. Compulsory termination of the right of ownership to a dwelling in which minor members of the owner's family live is also carried out in accordance with the procedure established by law.